Can Israel Cut Off Water and Power to Gaza?

by Kevin Jon Heller

That’s the question at the heart of a complicated debate between a variety of IHL scholars. The debate began with a legal opinion that Avi Bell submitted to the Knesset, in which he argued that nothing in international law prohibits Israel from cutting off the water and power it provides to Gaza. Although the opinion is dense — and has been updated in response to a document criticising an earlier published version — the bottom line is that Bell rejects the idea that Gaza is still occupied and believes it is thus impossible to find a positive obligation on Israel to continue to provide water and power (p. 5):

Some have argued that Israel is required to supply the Gaza Strip because Israel allegedly maintains control over Gaza. There are two versions of this claim: one version claims that Israel belligerently occupies the Gaza Strip; the other claims that Israel “controls” the Gaza Strip for purposes of human rights treaties or “post-occupation” duties even though it neither occupies nor exercises sovereignty over the Gaza Strip. When it controls territory through belligerent occupation, a state may have the duty supply certain goods to a civilian population if there is no other way to ensure access to the goods. Similarly, when it controls territory over which it has lawful sovereignty, a state may have the duty to supply certain goods when human rights treaties demand their provision to the civilian population. However, Israel does not control the Gaza Strip for purposes of the law of belligerent occupation or human rights duties. Thus, Israel cannot be held to a duty to supply.

Bell’s legal opinion led a group of leading Israeli international-law scholars, including Eyal Benvenisti, Aeyal Gross (also at SOAS), David Kretzmer, and Yuval Shany, to submit a response to the Knesset. The essence of the response is that even if Israel is no longer occupying Gaza (on which the experts do not take an opinion), its ongoing control over basic features of Gazan life means that it is not free to completely ignore basic Palestinian humanitarian needs. Here is the key paragraph (pp. 10-11):

Israel and Gaza are not equal sovereign entities. Israel has controlled Gaza for decades, which resulted in significant dependence on Israeli infrastructure. Even after the disengagement, it still holds certain powers over the population in Gaza – including by its control over essential infrastructure. Since Israel does not allow, de facto, the development of independent infrastructure in Gaza, it cannot completely deny the responsibility to provide these essential supplies. Therefore, the interpretation suggested in the Opinion does not reflect a proper balance between the different objectives of IHL – even when considering the special challenges of asymmetric warfare. Chiefly, this is because it results in a legal “black hole” which deprives the civilian population of the effective protection of international law.

The debate between Bell and the other experts led Diakonia, a Swedish NGO, to commission a third report from Michael Bothe, one of the world’s foremost IHL experts. Bothe concludes, like the group of experts, that cutting off water and power to Gaza could (in certain circumstances) violate IHL. But he offers two independent bases for that conclusion. First, contra Bell and going beyond the group of experts, he believes that Israel continues to occupy Gaza (p. 2):

For the purpose of answering the question posed, the question whether the Gaza Strip constitutes territory occupied by Israel is decisive…. It should be taken into account that the withdrawal was not as complete as it should have been in order to terminate Israel’s position as an occupying power. Israel continue to control access to Gaza from land (except for a relatively short border line with Egypt, which however was closed pursuant to an understanding between Israel and Egypt), from the sea and from the air. Israel, thus, remained in full control of the lifelines of the Gaza Strip. It is submitted that this is at least equivalent to a de facto control which, according to Art. 42 of the Hague Regulations, is constitutive for an occupation. If this argument is accepted, the cut of electricity and water supply would be a violation of Israel’s duty to provide for the welfare of the population.

Second, like the group of experts, Bothe believes that Israel does not have to formally occupy Gaza in order to have a positive obligation to provide it with water and power. The argument is dense; here is a key paragraph (p. 3):

The situation of the Gaza Strip is special. At least on the basis of a first search, there are indeed no cases concerning the duty of a party to a conflict to provide water and electricity to the other side. In such a case, the argument that everything is permitted in the absence of a specific practice is incorrect. The solution has to be found in applying general principles which form part of customary law. The principle underlying the customary rules concerning relief is to ensure that the basic needs of a population continue to be met under the conditions of an armed conflict. The supply cuts discussed here would… infringe that basic principle.

For my part, I find Bell’s report unconvincing. He simply denies, for example, that electricity is a “necessary humanitarian good under the laws of war” — a claim that both the groups of experts and Bothe effectively critique. Indeed, he bases that argument, at least in part, on a flawed understanding of when power plants can be targeted during an armed conflict (p. 4):

However, there is a widespread practice of targeting electric plants during wartime” and the practice is supported by statements of the International Committee of the Red Cross. It follows that electric plants do not enjoy special protection in war, and electricity is not a specially protected humanitarian good. Indeed, it would be paradoxical to say that a state is permitted to destroy the enemy’s electric plants, but is required to supply its own electricity to the enemy.

As the group of experts notes, Bell critically misstates the ICRC position. According to the ICRC, a power plant is a legitimate military objective only when it is used “mainly for military consumption” — which is clearly not the case in Gaza. Moreover, even if the ICRC position is too restrictive, both the group of experts and Bothe point out that Bell’s argument erroneously ignores the fact that the destruction of dual-use objects is subject to the principle of proportionality. That’s critical to whether Israel can cut off electricity to GAza, because Bothe notes (p. 4) that “in view of the malfunctioning of the one and only power plant due to damage or lack of fuel, supply by Israel is the only means to avoid the effects which the prohibition of disproportionate collateral damage is meant to exclude.”

(As an aside, Eric Posner parrots Bell’s erroneous claim in a recent blog post. With his typical disregard for the complexity of IHL, Posner writes that “international law does not bar a belligerent from cutting off electricity. Indeed, a belligerent is free to bomb the power plants of its enemy, as the United States has recently done in Iraq and Serbia.”)

There is much more in the reports, and I would encourage readers to read all three of them carefully. This is an important debate — because an untold number of Palestinian lives quite literally hang in the balance.

50 Responses

The logical end point of Bell’s argument would seem to be that if one can circumvallate an area without physically sending ground forces into it, one can then terminate the supply of water etc without consequence. That would be a true triumph of form over substance. If ever there was a case for the Martens clause, there it is.

7.26.2014
at 9:48 am EST Rob

Rob,

Completely agree. In that regard, Bell’s invocation of the Hostage case is particularly problematic, because the Tribunal specifically noted — not quoted by Bell — that occupation continues to exist, despite the absence of “boots on the ground,” as long as the occupier can assume physical control of the territory again “at any time they desire[].” As the most recent invasion demonstrates, that’s clearly the case in Gaza.

The Hostages Case was clearly speaking in reference to sporadic partisan resistance, not sustained control by an armed entity that has assumed virtually all internal governmental control. The Hostages Case makes clear that the elimination of armed resistance and the assumption of governmental authority are necessary conditions for effective control and thus necessary conditions for occupation. The ability to hold territory and therefore the ability to retake territory cannot be seen as sufficient for occupation. Even if we accept that the Court did not intend for its qualification to apply to limited and sporadic partisan resistance, the qualification does not negate the two clearly explicated necessary conditions.

As we learned in Congo vs. Uganda, Uganda maintained strong military control in various Congolese territories and even helped conduct rebel elections. The Court found, however, that Uganda was not an occupying power in these regions. As we can safely assert that Hamas has more control over Gaza than Uganda had over Congo these parts of Congo, we can by implication reach the same conclusion regarding Gaza as the Court reached regarding Congo (holding all things equal).

Finally, I’d like to remind you that yourself asserted that Gaza is not occupied:

Response… The prohibition against using starvation as a method of warfare is not limited to cases of occupation. So cutting off the water supply would definitely render the blockade in its current form unlawful. The ICRC and UN treaty monitoring bodies have already declared that the Gaza blockade is an illegal form of collective punishment. There have been reliable reports, including one from The Lancet, which illustrate that one direct result of the blockade is that a statistically significant proportion of the population, up to 30% in some areas, exhibited signs of malnutrition, including stunted growth of children; permanent developmental disabilities; and shortened life expectancy.

The commentary on Article 102 of the San Remo Manual explained that many of the 28 participants concluded that developments in international law had already rendered naval blockades unlawful under any circumstances, not merely those blockades whose “sole purpose” was starvation:

“102.1 The subject matter of this paragraph is one of the few aspects of the law of naval warfare which has been affected by the adoption of Additional Protocol I. The prohibition regarding starvation of the civilian population is as follows: ‘Starvation
of civilians as a method of warfare is prohibited.’

102.2 It has been argued that the prohibition of starvation has rendered naval blockade unlawful. The argument was the subject of intensive discussions among the participants. The discussions centred on the question whether the law prohibited blockades which led to starvation as a side effect or whether the blockade had to be established with the [sole] purpose of starving the civilian population.

102.3 The wording of subparagraph (a) as it stands reflects the view of the majority of the participants that the blockade, in order to be of itself illegal, must have the sole purpose of starving the population or have a disproportionate effect as indicated in subparagraph (b). Whenever the blockade has starvation as one of its effects, the starvation effectively triggers the obligation, subject to certain limitations, to allow relief shipments to gain access to the coasts of the blockaded belligerent. This obligation is reflected in the next paragraph.” http://goo.gl/w16nxs

Sending relief shipments to Israel or Egypt doesn’t satisfy that obligation or the ones created by UNSC resolution 1860.

At some point the idea that Israel can destroy thousands of homes, drive the hostile inhabitants into the Sinai, while blockading and cutting-off water and electricity to the remaining population has to constitute evidence of an attempt to impose conditions of life calculated to bring about a partial physical destruction of the targeted group.

7.26.2014
at 11:21 am EST Hostage

Kevin,

I doubt whether the last sentence in your comment above reflects the situation in Gaza (“at any time they desire”). There is very heavy fighting going on (and many casualties for the Israeli forces), and we are talking only about the outskirts of Gaza City (as far as I understand all ground hostilities are occurring within 3 kms from the border).

Our opinion (and I don’t presume to represent all of the signatories here) was referring to the powers that Israel still holds de facto. Conversely, the claim that Israel can assume physical control over the territory “at any time they desire”(and that the entire scope of the law of occupation is triggered at present merely by this fact) is far from reflecting the situation on the ground.

In fact, it would be tantamount to claiming that every stronger military force is an occupying force merely because of its potential to overcome (through the use of force)the other party, and thus to take control over territory.

Israel retains control over certain aspects of life in Gaza. It has obligations when exercising these powers (whether stemming from “functional” occupation or other sources). This is enough to refute the argument that it could cut-off electricity and water.

7.26.2014
at 11:39 am EST EliavL

Whether or not an occupation exists, some of the responses here have raised another issue — the use of a tactic or strategy during an armed conflict. Is there a NIAC ongoing between Israel and Hammas? During a NIAC, is the intentional destruction of food unlawful? During an IAC, food that might be used by noncombatants and combatants must be left alone. Water is more essential for the civilian population than food for the short and long term. In any event, use of water as a weapon (because that is what is being claimed) must comply with general principles of necessity and proportionality. Yes, a cut off of all water to Gaza would necessarily be disproportionate and an indiscriminate use of water as a weapon. In prior articles, I argued that food should be treated as neutral property like medicaments. Now it is evident that water should also be so treated, regardless of its use by enemy fighters in a NIAC or IAC.
Yes, electrical grids can be proper targets under certain liminted circumstances, but the princiole of proportionality must be considered as well as the related conclusion that some tactics involve indiscriminate consequences.

7.26.2014
at 12:19 pm EST Jordan

Response… Is there a NIAC ongoing between Israel and Hammas?

Not that it’s completely dispositive, but in the 2005 “Targeted Killings” case the Israeli High Court of Justice accepted the government’s position that it was an international armed conflict and that “a continuous state of armed conflict has existed between Israel and the Palestinian militias operating in Judea, Samaria, and Gaza since the first intifada.” See for example the subsection of the ruling under the heading “The General Normative Framework, A. International Armed Conflict” http://elyon1.court.gov.il/Files_ENG/02/690/007/a34/02007690.a34.HTM

7.26.2014
at 1:21 pm EST Hostage

Kevin,

You assert: “In that regard, Bell’s invocation of the Hostage case is particularly problematic, because the Tribunal specifically noted — not quoted by Bell — that occupation continues to exist, despite the absence of “boots on the ground,” as long as the occupier can assume physical control of the territory again “at any time they desire[].” As the most recent invasion demonstrates, that’s clearly the case in Gaza.”

The reassertion of physical control is made in reference to sporadic partisan resistance, not in reference to sustained control by the local power. The Court makes clear that the control held by the resistance was temporary and could not deprive the German’s of their status as an occupying power.

The court holds that in order for an occupation to exist, two conditions must be met. First, organized resistance must be completed eliminated. Second, the occupying power must exercise total governmental authority, through an administration to preserve law and order, to the exclusion of the established government. These are necessary conditions.

The ability to reassert control does not eliminate these requirements for establishing an occupation. The sporadic partisan resistance neither marked a resurgence of organized resistance or the reacquisition of the local power’s governing capabilities.

There is presently organized resistance in Gaza and Hamas, not Israel, governs exclusively. Therefore, the issue of Israel’s ability to reassert control is entirely moot. In the words of the Court:

To the extent that the occupant’s control is maintained and that of the civil government eliminated, the area will be said to be occupied.

Congo v. Uganda provided tremendous insight on this line of reasoning. Uganda in fact had boots on the ground. Nonetheless, Uganda was not considered an occupying power due to the authority held by local rebels. This is despite the various elements of authority Uganda held such as organization elections. It’s quite clear that Uganda governed far more to the exclusion of Congo than Israel governs to the exclusion of whoever may be considered the local authority in Gaza. The critical matter here is the fact that Uganda was not doing the governing; that was the job of an allied rebel movement. What is to be said when a non-allied movement is doing the governing?

Finally, you should be reminded that you have maintained Gaza s not occupied:

“I happen to believe that Israel is no longer legally occupying Gaza,”

Rule of threes for survival. Can last 3 weeks without food, 3 days without water, and 3 minutes without air. And that is not in the heat of Gaza not adjusting for children. Bell is doing lawfare not law. Perception management of the worst kind. I cannot believe the memos people write with a straight face in the legal wordplay games that confuse the words with the underlying thing. As Bettelheim said, the word is not the thing. I doubt there is a person in Gaza who believes that they are sovereign as opposed to subordinated to Israeli control at a level that is occupation. Whatever the imaginative rationalizations of wordsmiths writing jive reports.

7.26.2014
at 9:50 pm EST Benjamin Davis

What is this “understanding” between Egypt and Israel? Egypt doesn’t cut off Gaza and Hamas because of Israel, it does so for it’s own reasons, basically because Hamas is affiliated with the current government’s enemy, the Muslim Brotherhood. And what does the border being “short” have to do with anything? The idea that Israel control the border with Gaza when Egypt can open at any time (and did when the MB was in power) is absurd.

7.26.2014
at 9:56 pm EST David B

Kevin, thanks for bringing this to our intention. Lots of reading for many of us. So much to comment on, but I will confine myself to one point at first.

You wrote: ‘According to the ICRC, a power plant is a legitimate military objective only when it is used “mainly for military consumption”’. If that is the ICRC position, it is wrong. An object becomes a military objective when it makes an effective contribution to military action (and all of the other parts of the test in art.52(2) API). For example, the output of a power plant could go 98% to civilian use, but if the other 2% was, for example, used to power part of the enemy’s air defence system, then the power plant would be a military objective. A further practical example would be a bridge that has 10,000 civilian vehicle movements per day, plus also a few hundred military vehicle movements. The bridge would be a military objective, despite being ‘mainly’ used for civilian traffic. This conclusion is supported by the commentary to rule 22(d) of the Air and Missile Warfare manual and the commentary to rules 38 and 39 of the Tallinn Manual.

Of course, the percentage of military use will be a factor in determining the anticipated military advantage to be gained from the attack, and the percentage of civilian use is likely to influence the expected collateral damage (due to the likely presence of civilians etc). However, these factors go to the proportionality of attacking a military objective (and, accordingly, the means and methods that might be employed in the attack) and not whether an object is a military objective in the first place.

7.27.2014
at 1:43 am EST Ian Henderson

Ian,

I agree. That’s why I simply pointed out that Bell misstates the ICRC position and that his position is problematic even if the position is too narrow.

The response opinion’s analysis of Israel’s purported post-occupation obligations is problematic. The main basis submitted for such obligations is since otherwise “it results in a legal “black hole” which deprives the civilian population of the effective protection of international law.” Of course recourse may be had to general principles of law in instances when there is genuinely a legal black hole (such as when Denmark, the Netherlands and Germany attempted to delimit their continental shelf in the 1960s). However, there is no such black hole exists in casu. Rather, there is the legal rule – deriving from State sovereignty – that every State has the authority to determine entry and exit through in and out of its territory.
Neither does there seem to be any post-occupation customary obligation. The response opinion even states that such a concept is “emerging”.

7.27.2014
at 2:30 am EST Ori

If my memory serves me well, the question was examined in Bassiouni case by the Israeli HCJ. The court did rule that Israel is under some positive obligations to provide Gaza citizens with electricity & etc because of the situation created by the previous prolong occupation.

7.27.2014
at 2:37 am EST R.H.

R.H., the HCJ referred to Israeli municipal law when doing so and not international law.

7.27.2014
at 2:47 am EST Ori

Response…R.H., the HCJ referred to Israeli municipal law when doing so and not international law.

Correction: In Bassiouni (HCJ 9132/07) the Court explicitly stated that: “Our decision was based mainly on the state’s undertaking, as required by Israeli and international law, to monitor the situation in the Gaza Strip and ensure that the aforesaid reduction is not detrimental to the humanitarian needs of the inhabitants of the Gaza Strip.” http://goo.gl/VQ6I2R

The High Court has always held that customary international law is part and parcel of the common law of the land, and will be enforced by the Israeli domestic courts unless it is incompatible with parliamentary legislation. See for example David Kretzmer’s, “International Law in Domestic Courts: Israel” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1290714

In addition, the MFA has a webpage on “The Applicable Legal Framework” for IDF Operations in Gaza which says: “In particular, Israel’s High Court of Justice has confirmed that in the ongoing armed conflict with Palestinian terrorist organisations, including Hamas, Israel must adhere to the rules and principles in (a) the Fourth Geneva Convention, (b) the Regulations annexed to the Fourth Hague Convention (which reflect customary international law), and (c) the customary international law principles reflected in certain provisions of Additional Protocol I to the Geneva Conventions on 1949. Israel is not a party to the Additional Protocol I, but accepts that some of its provisions accurately reflect customary international law.”

Both opinions for and against relate to a situation where there is tension between Israel and the Hamas. However, one may suggest that in times of war there may not be a duty to supply electricity to certain areas in Gaza.

Hillel

7.27.2014
at 10:22 am EST Hillel Berg

Ben cuts through the details and looks at the larger consequences — use of water as a weapon on war with obvious consequences for an entire population (including children) would necessarily be indiscriminate. Depending on circumstantial evidence of intent, could it also be a criime against humanity of the traditional type (not the ICC definition with its many limitations)– and attack on civilians?

7.27.2014
at 12:33 pm EST Jordan

Mainen, Kevin’s argument has been expressed a number of times and he portrayed a more complex reality. This is an old post that he published:

“I am not completely convinced that Gaza is still occupied by Israel. It’s very close, with good arguments on both sides. Two points, though:

1. if it is not, then Israel’s blockade of Gaza is illegal and an act of war against the flag state of any ship interdicted by Israel (such as the Mavi Marmara). Blockade is only permissible in international armed conflict (see the Civil War cases in the US), and in the absence of occupation the only possible conflict between Israel and Gaza is non-international.

2. It is well-established (following the NMTs after WW II) that a state can exercise effective control over territory without having boots on the ground as long as it has the ability to physically (re-)occupy the territory at any time. That is the strongest argument for why Israel still occupies Gaza. (Though, again, I’m on the fence about that issue.)”

DAVID B, the comparison between Israel and Egypt about Gaza is misleading (demographic registries, the coast, the air, the shekel that the local population uses…and few dozens of other aspects make Gaza dependent almost completely on Israel)

7.28.2014
at 8:16 am EST carl meyer

Hostage and Ian, et al., re: use of water as a weapon — assuming that there is an ongoing IAC, Article 54(2)-(3) of Geneva Protocol I provide details (the gnats vs. the camel) re: use of water as a weapon: it is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as … drinking water installations and supplies…. There are gnat-type limiting words as well, but one would have to swallow the camel. Bottom line again, indiscriminate.

7.29.2014
at 12:57 pm EST Jordan

Response…What is this “understanding” between Egypt and Israel? Egypt doesn’t cut off Gaza and Hamas because of Israel …

Israel still exercises sole control over the population registry and an Israeli-approved ID card or passport is required for any Palestinian to leave Gaza, including through the Rafah crossing. See the Amnesty International document dated July 25, 2014. http://goo.gl/NXzC4f

7.29.2014
at 2:30 pm EST Hostage

Carl,

Thanks for the response.

1) Can you please provide me for your source of opinio juris and state practice as applicable to Israel that blockades are not lawful in non-international armed conflict today? If you wish to cite me articles, then so be it. Please tell me, however, where in the articles I will find reference to the kind of original source material relevant for establishing opinion juris and state practice.

2) The ability to reassert authority is not a sufficient condition for effective control. Otherwise, the USA would still occupy Japan. If you have evidence of opinio juris and state practice negating the necessary conditions I cited above, I would be much obliged. It is clear that the ability to reassert authority is spoken about within the context of the two necessary conditions being satisfied. A riot that takes 10 hours to quell does not mean that the occupying power has lost overall effective control for the duration of 10 hours. A 30 minute partisan attack does not mean that effective control had been lost during those 30 minutes. This is a far cry from a sustained withdrawal.

With respect, you have the burden of establishing opinio juris and state practice backwards. A blockade, which takes place on the high seas, interferes with the rights of other states to sail freely, engage in commerce, etc. Such interference is generally prohibited by international law. As a result, a state that claims the right to blockade must find a rule of international law that gives it that right. (This is not, in other words, a Lotus situation, even if that judgment remains good law.) In IAC, it is well established that a blockade is permissible in some circumstances. But there is no opinio juris or state practice that suggests a blockade is permissible in NIAC, as my posts explain. On the contrary, even the US Supreme Court (in the Prize Cases) has held that blockade is only permissible in IAC.

3 days without water – 3 weeks without food.” – rule of threes survival.com

Well electricity had now been bombed off and the water runs on electricity so it is shutoff. Those who stockpiled water have a longer chance. Those who are old or young without water probably have less than three days. Those who are adults have three days – that is Thursday or Friday depending on the time zone calculation.

The clock is ticking and the body is what the body is. The hard men and hard women can prevent a crime against humanity and a war crime. Let’s see who is civilized in Gaza and Israel.

These permutations of wordplay here are missing the point – the word is not the thing and the clock is ticking. Do not say you did not know.

7.29.2014
at 8:32 pm EST Benjamin Davis

Kevin – I will take a look at the blockade discussion. From what you have said here, it appears that one cannot examine this without invoking axiomatic general principles of law. One says that X is not illegal; another says well prove to me that it IS legal. If something is not proscribed, is it allowed?

My primary interest, however, is what you have to say about my comments on the Hostages Case.

My experience by and large is that when the Hostages Case is cited with respect to Gaza in making an argument that Gaza is occupied, the two necessary conditions are completely ignored. When this issue is raised, the rebuttal turns to characterizations of Tadic and Congo v. Uganda.

7.29.2014
at 10:33 pm EST matthew mainen

There is actually State practice and opinio juris regarding blockades against non-State actors. This occurred in the American Civil War. It is worth noting that following his analysis of that blockade, Colombos writes “There can be no doubt that blockade is a well-established naval operation in times of war” (p. 716). Hence, ultimately, Mathew seems to be correct in asserting that in order for Israel’s blockade to be illegal, there must have been State practice and opinio juris contrary to Israel’s policy.

In relation to occupation, it should be observed that the DRC explicitly relied on a very similar approach to that stated in the Hostages case (see Prof Salmon at para. 26 http://www.icj-cij.org/docket/files/116/4277.pdf; Prof Corten at para 14). However, the Court did not adopt this approach in para 173 of its judgment.

Hostage, I’m not sure how that quote relates to post-occupation obligations.

7.30.2014
at 4:58 am EST Ori

Ori,

Your comment is incomplete — and revealingly so. The US Supreme Court specifically held in the Prize Cases that the North’s decision to blockade the South transformed what was originally an insurgency (a non-international armed conflict) into a recognized belligerency (an international armed conflict). And it did so specifically on the ground that a blockade is an act of war, not a means of dealing with insurgents. The Civil War thus cuts precisely against the idea that blockade is permissible in a non-international armed conflict.

Response…There is actually State practice and opinio juris regarding blockades against non-State actors. This occurred in the American Civil War.

The relevant expert panels elected by the member states to operate the human rights treaty monitoring bodies and the UNRWA all say that the blockade of Gaza is illegal. On more than occasion, the UN General Assembly has adopted resolutions which say that Israel’s continued occupation of Arab territories captured in 1967 in violation of the UN Charter and resolutions of the Security Council and General Assembly constitutes aggression. See for example General Assembly Resolution ES-9/1 and General Assembly resolution 39/146.

The U.S. State Department has a web page, that cites the US Civil War, which explains that blockades have historically resulted in belligerent recognition, because they are “a weapon of war between sovereign states.” http://goo.gl/EA2r1U

In that connection, Wikileaks released a cable which said that Israeli Military Intelligence Director Yadlin told the US government that Israel would be “happy” if Hamas took over Gaza, because the IDF could then deal with Gaza as “a HOSTILE STATE”.[emphasis added] http://goo.gl/iw7Bmy

UN Security Council resolution 1860 (2009) stressed that the Gaza Strip constitutes an integral part of the territory occupied in 1967 and will be a part of the Palestinian state. It also required the unimpeded provision and distribution throughout Gaza of humanitarian assistance, including things such as water, food, fuel, and medical treatment. Distribution of water and operation of reverse osmosis systems requires electrical power to run the pumps.

According to the Washington Post and many other sources, Israeli government spokesman Mark Regev subsequently cited the San Remo Manual and maintained that Israel was clearly within its rights to stop the aid flotilla, saying “any state has the right to blockade ANOTHER STATE in the midst of an armed conflict.” [emphasis added] http://goo.gl/bmm2de

I noted above that the commentary on the San Remo Manual actually cites developments in international law and calls the lawfulness of blockades into question. In Judge Stephen M. Schwebel’s, Justice in International Law, Chapter 33, Aggression, Intervention, and Self Defense in Modern Law, the former ICJ President noted that when the General Assembly adopted the consensus Definition of Aggression it was concluding more than fifty years of sporadic discussions among the members of the international community of states on that subject. The definition included military occupation, blockade, and annexation of territory in violation of the UN Charter as specific examples of constituent acts of the crime of aggression. He cited the example of Israel’s disputed statehood in 1948 and said there was nothing to prevent members, and everything to compel them, to interpret “States” as embracing entities whose statehood is disputed based upon the explanatory note in the General Assembly’s definition. He said it would be pedantic literalism to maintain that an entity whose statehood is disputed is excluded from the reach of Article 2, paragraph 4 of the Charter. In the Paramilitary Activities in and Against Nicaragua” case, which dealt specifically with the mining and closure of Nicaraguan harbors, the ICJ ruled that the definition and its prohibitions reflected binding customary international law.

After the 1995 San Remo Manual was published, the definition was incorporated into amendments to the Rome Statute of the ICC which have not yet entered into force. But in R. v Jones one of the UK Law Lords advised: “that the core elements of the crime of aggression have been understood, at least since 1945, with sufficient clarity to permit the lawful trial (and, on conviction, punishment) of those accused of this most serious crime. It is unhistorical to suppose that the elements of the crime were clear in 1945 but have since become in any way obscure.”

For example in 1967 Israel’s Prime Minister claimed that the blockade of the Straits of Tiran combined with a policy of strangling encirclement was “illegal”. See Telegram from Israel PM to U.S. President Johnson Justifying Military Action http://goo.gl/3pPs4A

Can you cite any opinio juris or state practice other than those examples?

7.30.2014
at 6:53 am EST Hostage

Where exactly did the Supreme Court assert that “blockade is only permissible in IAC?” The Supreme Court certainly was sympathetic to the idea that there was a conflict between belligerents, notwithstanding its equal acceptance of the USA’s not recognizing the conflict as such, but I do not see where in the case the Court holds that blockade is permissible ONLY in IAC. I assume you have spent far more hours on this case than me. Please lend your scholarly guidance.

If I am not mistaken, in your original article from four years back, nobody mentioned Biafra. I believe there was some type of blockade instituted. I could be wrong. A cursory Google search indicates that this was the case. In the four years since you wrote your piece, has the issue of Biafra come up? If so, what were your conclusions?

I am also particularly interested in your suggestion that if a tactic utilized in non-international armed conflict, which meets
certain characteristics, has not been enshrined in customary international law, then it is presumed unlawful. Does this apply to all tactics applicable to international armed conflict, or only some tactics? If not all tactics, what is the criteria for the presumption of illegality? You mention the impact it has on other states’ commerce. I would really love to get busy reading some of the material that led you to your conclusion.

Thanks, Kevin! I’ve always appreciated your willingness to support your claims with your ample research (yes I have been a lurker here for a while), and I look forward to seeing what you have here.

7.30.2014
at 9:52 am EST Matthew Mainen

Prof Heller, that is indeed correct (though one could try to argue that the objective criteria laid down by the Supreme Court might cover Hamas: 67 US 635, 666-667). However, it should also be noted that the US Government (whose practice and opinio juris should be considered as having greater weight, considering it is the branch involved in international relations) was more of the view that the conflict was one of insurgency and the belligerent rights provided were done for humanitarian reasons (75 US 1, 10-11) – not out of legal obligation.

7.30.2014
at 10:07 am EST Ori

Having looked into it, I can say with absolute certainty that there was not only a blockade against Biafra, but that it substantially contributed to a major humanitarian crisis, which I suspect was far worse than anything Gaza has experienced (though this requires more research on my part).

Biafra was overwhelmingly unrecognized and was viewed by the overwhelming majority of the world as falling under Nigerian sovereignty.

Further research is required, but my hunch is, for very obvious reasons, that the conflict was considered a NIAC. If that’s the case, and the world made no objections to the blockades legality on account of the lack of an international armed conflict, what implications would you see this having for the suggestion that there is a lack of state practice and opinio juris for the use of blockades in non-international armed conflict?

I am not precluding the possibility (perhaps very strong) that the blockade may have been deemed illegal for other reasons. I am simply restricting the question of legality to the topic at hand.

Hostage, the examples you provided are sporadic and not systematically held by the Israeli government. In this regard, reference should be made to para. 74 of the France/Unesco case of 2001 where the tribunal stated that the practice of more senior officials supersedes that of lower-ranking officials. If you were quoting the foreign or prime minister the arguments you presented might hold greater weight.

7.30.2014
at 11:42 am EST Ori

I was in Nigeria at the time of the Nigerian Civil War. As I remember the subtleties of IAC and NIAC and blockades were pretty much irrelevant to the world. There were protests in the US and Europe about the blockade of the Ibo areas and the starvation there. I am certain that the US government took this up directly with the Nigerian government through the US Ambassador, the late C. Clyde Ferguson and persons after that.

I suspect the Soviet Block also got involved in that I saw pictures of the starving Ibo kids in front of churches in Warsaw in 1970.

Hope that helps.
Best,
Ben

7.30.2014
at 12:11 pm EST Benjamin Davis

Benjamin,

Thanks for sharing. You gave me a great idea through your mentioning the US Ambassador. As a resident of Maryland, I am 30 minutes away from the diplomatic archives stored in College Park. I am inclined to pay a visit and browse the diplomatic cables for the relevant years. I can only imagine that if the legality of the blockade were an issue for the USA, I would find it in the archives in addition to the justification for the positions.

7.30.2014
at 12:27 pm EST Matthew Mainen

Response… Hostage, the examples you provided are sporadic and not systematically held by the Israeli government. If you were quoting the foreign or prime minister the arguments you presented might hold greater weight.

I was quoting Prime Minister Eshkol who claimed the blockade of the Straits of Tiran was “illegal” and that the tactic of strangling encirclement was sufficient justification for the use of military force. Hamas seems to agree and is refusing to accept a cease fire unless the siege against Gaza is lifted.

FYI, I could have cited scores of examples of belligerent recognition of the Hamas government by
your Prime Ministers, Foreign Ministers, and credentialed diplomats. They routinely deliver letters to the Security Council demanding that Hamas fulfill obligations that only apply to other states or to wrongful acts of state. It really only takes a few examples to trigger the legal consequences. A good resource on the subject of belligerent recognition is Ti-chiang Chen, “The international law of recognition, with special reference to practice in Great Britain and the United States”, Praeger, 1951. It available online in the Internet Archive.

I also cited the (now) customary Definition of Aggression which says that any occupation or blockade in violation of the UN Charter is illegal and pointed out that it was the culmination of 50 years of discussions between members of the international community of states. It was subsequently endorsed by the review conference of the Assembly of State Parties to the Rome Statute. The General Assembly has cited Israel’s continuing occupation of Arab territories captured in 1967, in violation of the UN Charter and the applicable UN resolutions as an example of aggression. I’ve also noted that the ICRC,the OHCHR, and the independent expert panels of the human rights treaty monitoring bodies have stated that the blockade of Gaza is an illegal form of collective punishment that violates Israel’s charter obligations.

7.30.2014
at 12:32 pm EST Hostage

Hostage, Eshkol’s complaint regarded violations of Article 16(4) TSC. The subject of my post you responded to was NIACs and blockades.
If you are arguing that Hamas is a recognised belligerent, then you have proved (at least the potential for) the legality of a blockade of Gaza from Prof Heller’s perspective.
If we are going to be citing authorities, the UN Secretary-General’s commission and also the Turkel Commission (involving the late Prof Rosenne as a member and Prof von Heinegg as a special consultant) have considered the blockade lawful.

7.30.2014
at 1:08 pm EST Ori

Kevin and Ori, et al.: the U.S. Civil War was a “belligerency,” as the U.S. S.Ct. recognized in the Prize Cases (the dissent disagreeing). Ori is correct that a “belligerent” CSA (Confederate States of America) was an NSA (since no state recognized the CSA as a “state” and the S.Ct. addressed traditional criteria for “belligerent” status and noted that the UK and some other European states had recognized the CSA as a “belligerent”). An “insurgency” was not recognized under international law at the time. Those with less than “belligerent” status were like bandits, etc.
Once a “belligerency” existed, all of the customary laws of war applied (and still do today and we would call a “belligerency” an IAC — or surely should b/c all of the customary laws of war apply). The United States adopted the Lieber Code, which attempted to codify the customary laws of war at the time, and applied the Lieber Code during the war, esp. for prosecution of CSA violators of the laws of war and for prosecution of some members of the army of the United States.

7.30.2014
at 1:26 pm EST Jordan

p.s. the United States had been attacked by the NSA and one of the issues before the Court was whether the President had authority to order a blockade. The Court found that he did under two federal statutes (so many misinterpret the languague of the Court regarding the authorization — he is not only authorized (and one should see the preceeding sentences to understand how he was authorized).
The Court expressly addressed the propriety of the President’s action under the law of nations and found that the blockade was permissible under the law of nations (b/c of the “belligerency”And re: Ben’s remarks, let us not strain at a gnat and swallow a camel — water, food, indiscriminate, bottom line.

7.30.2014
at 1:32 pm EST Jordan

Thanks Matthew,
I vaguely remember some kind of airlift of food aid to the East being organized by the US embassy. That might be discussed in the cables around 68 or 69. 68 was a particularly desperate time on the East with the encircling of Enugu.
Best,
Ben

7.30.2014
at 1:50 pm EST Ben Davis

Response…The subject of my post you responded to was NIACs and blockades.

We were also discussing opinio juris and state practice. So the inclusion of blockades and military occupations in the definition of the crime of aggression would still apply to a situation, regardless of whether or not belligerent recognition had occurred.

Likewise a military occupation in violation of the UN Charter would be illegal. Neither the Hague nor the Geneva Convention would serve as a license in such cases. Even an occupation authorized by the UN Security Council would become illegal the moment it was employed for “eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid, and the crime of genocide”. See the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.

Response … If we are going to be citing authorities, the UN Secretary-General’s commission and also the Turkel Commission (involving the late Prof Rosenne as a member and Prof von Heinegg as a special consultant) have considered the blockade lawful.

The Palmer Commission had no legal mandate to gather evidence, testimony, or make any legal determinations – and admitted as much in the text of its report. Its only real mission was conciliation. It was a subsidiary organ created by the Secretary General that took instructions from the two member states concerned regarding the conclusions contained in its final report in violation of the principles contained in Article 100 of the UN Charter: “In the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization.”

FYI, the US had engineered the Palmer report in order to make the formal reports from the international mandate holders, i.e. the UN OHCHR and UNHRC, “disappear”. Anne Bayefsky spilled the beans about the behind the barn deal that led to its creation because she thought the Obama administration hadn’t kept its end of the bargain:

August 2, Ban launched his investigation, which got off the ground only because the U.S. pressed Israel to agree, and Israel took American assurances seriously. U.S. ambassador to the UN Susan Rice spelled some of them out: “The United States expects that the Panel will…obviate the need for any overlapping international inquiries.” The overlapping inquiry of the Human Rights Council, she claimed, would go away.
…
Haaretz added that the Israeli government believed it had received assurances that “the review panel will not have the authority to subpoena witnesses, including Israel Defense Forces soldiers and officers.” http://www.weeklystandard.com/blogs/investigation-israels-action-flotilla-continue?nopager=1

7.30.2014
at 2:06 pm EST Hostage

Hostages –

“The Palmer Commission had no legal mandate to gather evidence,”

And yet you cite as authoritative the General Assembly and other bodies that have absolutely no inherent law making authority.

You hold that the USA has engaged in political-conspiracies (whether they be true or not) to challenge the assertions of these bodies. It clearly does not agree with the views of these bodies.

Sorry – but universally applicable customary international law cannot be enshrined over the considerable objections of the United States.

Opinio Juris and state practice on the part of
Mauritania and Comoros have little impact on Israel’s obligations, especially when we consider opposite indications of opinio juris and state practice from the USA.

7.30.2014
at 2:22 pm EST Matthew Mainen

Response…And yet you cite as authoritative the General Assembly and other bodies that have absolutely no inherent law making authority.

The UN human rights treaty monitoring bodies are unconditionally bound by customary law and fulfill functions and purposes contained in convention laws adopted by the competent member state authorities. Their practice and the practice of UN organs can constitute evidence of customary international law. See for example the “Repertory of Practice of United Nations Organs” and http://www.un.org/law/repertory/ and the International Law Commission’s “Ways and means for making the evidence of Customary International Law more readily available” http://legal.un.org/ilc/guide/1_4.htm

One of the explicit Charter functions of the General Assembly is encouraging the progressive development of international law and its codification. The ICJ has advised that a number of General Assembly resolutions, like the “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations” and the “Definition of Aggression” reflect customary international law. In addition, the overwhelming majority of post-WWII multilateral conventions have been drafted as initiatives of the General Assembly and are contained in annexes to General Assembly resolutions. See Declarations and Conventions contained in GA resolutions.

I have no problem accepting the proposition that some blockades can be lawful, when certain conditions are satisfied. I don’t accept the proposition that a publicist’s opinion is evidence of international law when he doesn’t gather evidence or testimony from those concerned and contradicts the statements regarding collective punishment made by fact finding missions; the legal mandate holders in the treaty monitoring bodies; and the ICRC acting in its capacity as an IHL watchdog.

Responding … Sorry – but universally applicable customary international law cannot be enshrined over the considerable objections of the United States.

That’s a doubtful proposition. I cited at least one case, Nicaragua v United States where the ICJ advised that the General Assembly’s Definition of Aggression reflected customary international law, despite the considerable objections of the United States.

Response … Opinio Juris and state practice on the part of
Mauritania and Comoros have little impact on Israel’s obligations, especially when we consider opposite indications of opinio juris and state practice from the USA.

I can’t speak to Mauritania and Comoros, but the United States is a contracting party to a number of conventions on the rights and duties of States, e.g. the Montevideo Convention, the OAS Charter, and the UN Charter which indicate the territory of a state is inviolable and may not be the object of military occupation nor of other measures of force, like blockades, imposed unilaterally by another state directly or indirectly or for any motive whatever even temporarily. Those conventions reflect state practice and the US Stimson Doctrine. Both the US and the UK proposed an international maritime flotilla to break the Egyptian blockade of the Straits of Tiran. So there’s really no problem citing opinio juris or examples of conforming US state practice.

7.30.2014
at 8:11 pm EST Hostage

I do not deny that such organs may, at times, reflect custom, but the same holds for such ad hoc institutions such as the Palmer Committee.

Regarding your beef with Palmer – it would help me understand your position better if you provided me with what you see as the crime elements for collective punishment and how “evidence and testimony from those concerned” are necessary for determining the full satisfaction of such elements in reference to the blockade.

With respect to Nicaragua v. United States, you will have to provide me with the exact paragraphs. While I certainly remember the USA doing much objecting to the work of the ICJ, I do not recall the discussion of the establishment of a custom over the objections of the United States. By and large, the United States’ argument centered on its belief that because the customary laws the Court wanted to apply were also found in multilateral treaties, the Court could not apply those customs on the basis of the multilateral treaty reservation.

“The United States is a contracting party to a number of conventions on the rights and duties of States…the UN Charter…which indicate the territory of a state is inviolable and may not be the object of military occupation nor of other measures of force, like blockades, imposed unilaterally by another state directly or indirectly or for any motive whatever even temporarily.”

There is nothing in the UN Charter that prohibits unilateral occupation resulting from self-defense or any other lawful mechanism of force.

7.31.2014
at 11:06 am EST matthew mainen

Response…Regarding your beef with Palmer – it would help me understand your position better if you provided me with what you see as the crime elements for collective punishment and how “evidence and testimony from those concerned” are necessary for determining the full satisfaction of such elements in reference to the blockade.

My beef with Palmer is that he admitted that the members of his so-called Inquiry would not, and could not, act as triers or finders of fact. Nonetheless he turned right around and deliberately made pronouncements about proportionality while deliberately ignoring all the direct evidence of persecution, starvation, malnutrition, and death as a result of the blockade and the policy of closing the land border crossings that the competent UN organs and the ICRC had amassed.

I’ve already explained myself quite fully in the comments above about the San Remo Manual commentary. Among other things, starvation as a method of warfare is prohibited and Mr Palmer can’t simply put aside reports of food and water shortages and evidence of severe malnutrition and magically declare blockades to be legal on the basis of an abstract legal analysis that avoids the facts, the applicable law, and the customary prohibitions.

To answer your question, the formal reports, like the Goldstone mission findings regarding the series of acts that deprive Palestinians in the Gaza Strip of their means of sustenance, employment, housing and water, that deny their freedom of movement and their right to leave and enter their own country, that limit their access to courts of law and effective remedies, and access to lifesaving medical care say those are an illegal form of collective punishment. None of those particular allegations of war crimes and crimes against humanity were ever retracted. The UNHRC Flotilla Inquiry considered that and other reports, like the one from the UN High Commissioner for Human Rights after her trip to Gaza, and concluded the blockade was illegal and caused disproportionate damage to the civilian population.

You can simply compare the legal analysis of blockade conducted by the ICRC or the UNHRC Flotilla Inquiry to Palmer’s dissimulations and theoretical analysis. The ICRC and UNHRC noted that a blockade must satisfy certain legal criteria and prohibitions in order to be lawful and then cited various violations detected through direct field observations by their own officials or independent fact finding mission reports which indicated that Israel’s blockade constitutes an illegal form of collective punishment that can’t be remedied through more humanitarian assistance.

The UNHRC and humanitarian organizations noted that many in Gaza face a shortage of food or the means to
buy it, and that the ordinary meaning of “starvation” under the law of armed conflict is simply to cause hunger. The food and water insecurity and shortages in Gaza were much worse than that. Lancet found evidence of malnutrition, stunted growth and permanent developmental disabilities with rates as high as 30 percent in some areas. The UNHRC also observed destruction of the economy and the prevention of reconstruction, destruction of the populations sources of sustenance, 70 percent unemployment and 80 percent reliance on international aid, and Israel’s interference with the normal flow of relief and other supplies. It also noted public remarks made by Israeli officials regarding their intent to impose reduced caloric rations on the Gaza collective and their intent to collectively punish the people of the Gaza Strip for having elected Hamas. It concluded that there was disproportionate damage to the civilian population that a court could reasonably conclude amounted to the crime of persecution. See http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-48.pdf and http://www2.ohchr.org/english/bodies/hrcouncil/docs/15session/A.HRC.15.21_en.pdf

Anyone can read the ICC “elements of the offense” for the crime of persecution online if you haven’t already done that. (pdf) http://goo.gl/py01hK

7.31.2014
at 9:26 pm EST Hostage

I didn’t see in your response where you posted what you believe the crime elements of collective punishment are. Am I missing something?

8.01.2014
at 9:04 am EST Matthew mainen

Response…I didn’t see in your response where you posted what you believe the crime elements of collective punishment are. Am I missing something?

Yes, I pointed out that a number of sources had reported on the issue of food insecurity inside the fenced-off Palestinian enclaves and the prohibition against the use of starvation as a method of warfare. For example, that issue was specifically addressed in the Secretary General’s dossier and statement to the Court in the Wall case, i.e. “the right to an adequate standard of living, including adequate food, clothing and housing, and the right “to be free from hunger” (Art.11 of the International Covenant on Economic, Social and Cultural Rights); and GCIV Article 59 obligations: “If the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal.” They were the subject of one of the Court’s findings of fact which advised that those fundamental rights and obligations were being systematically violated by Israel.

I noted that the UNHRC had accepted similar findings of fact in the Goldstone mission’s report with respect to the deliberate destruction of the population’s sources of sustenance and the deliberate disruption and reduction in the amount of international food aid. The report said that a court could reasonably conclude that amounted to the crime of persecution against the Gaza collective. One of the offenses that is subject to the ICC’s jurisdiction under the Statute is “Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;” In this case the offense is compounded by directing the method of warfare against an identifiable group or collective on political, racial, national, ethnic, cultural, and religious grounds.

I provided you with a link to the ICC elements for those offenses. FYI, the blockades during the US and Nigerian Civil Wars had already occurred when the prohibition against starvation was adopted in 1977.

Article 7 (1) (h)
Crime against humanity of persecution
Elements
1.
The perpetrator severely deprived, contrary to international law,one or more persons of fundamental rights.
2.
The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such.
3.
Such targeting was based on political, racial, national, ethnic, cultural, religious,
gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law.
4.
The conduct was committed in connection with any act referred to in article 7, paragraph 1, of the Statute or any crime within the jurisdiction of the Court.
5.
The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
6.
The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

Article 8 (2) (b) (xxv)
War crime of starvation as a method of warfare
Elements
1.
The perpetrator deprived civilians of objects indispensable to their survival.
2.
The perpetrator intended to starve civilians as a method of warfare.
3.
The conduct took place in the context of and was associated with an international armed conflict.
4.
The perpetrator was aware of factual circumstances that established the existence of an armed conflict

8.02.2014
at 9:14 am EST Hostaqge

why is the issue framed as whether israel occupies gaza, and not whether israel occupies palestine? it seems reasonable to suppose that because of its size and population, gaza could not on its own be a self-sustaining state. do occupying powers get to pick and choose which parts of occupied states it has responsibilities towards by withdrawing, perhaps for strategic reasons, from proper parts of them?

8.03.2014
at 8:20 am EST uri

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